Weston, C.J. - (1.) On 17-7-1951 a Bench of this Court, of which I was a member, declared the Punjab Requistioning of Immovable Property Act, 1947 and 1948, 'ultra vires' of the Government of India Act, 1935, on the ground that by those Acts permissible requisitioning of property was not required to be for a public purpose. To meet this decision the Punjab Requisitioning of Immovable Property (Amendment and Validation) Ordinance, 1951, has been promulgated on 3-8- 1951 by the President exercising under Article 356 of the Constitution the powers of the Governor. This Ordinance made under Clause (1) of Article 213 of the Constitution amends Ss. 2 and 3 of the East Punjab Requisitioning of Immovable Property (Temporary Powers) Act, 1948 in the following manner. In Sub-section (1) of Section 2 of the Act, after the words "requisition any immovable property" the words "for a public purpose" are, and are deemed always to have been, inserted. In Sub-section (1) of Section 3 of the Act, after the words "acquire such property" the words "for a public purpose" are and are deemed always to have been inserted. By Clause 4 of the Ordinance provision is made for validation of requisitions and acquisitions made before the commencement of the Ordinance. It is provided that a presumption 'shall exist that every such requisition or acquisition was made for a public purpose, and this presumption is to exist notwithstanding any judgment, decree or order of any Court. By Clause 5 of the Ordinance provision is made for restoration of proceedings in which any requisition or acquisition has been found to be invalid on the ground that the Act under which the requisition or acquisition was made did not contain a specific provision that the requisition or acquisition should be for a public purpose. I understand that this Ordinance has since been replaced by an Act in similar terms made by the President under powers conferred by Section 3 of the Punjab State Legislature (Delegation of Power Act, 1951 (XLVI of 1951).
(2.) The application before us in Civil Writ No. 40 of 1951 is under Article 226 of the Constitution and is directed against action taken or about to be taken by Government to requisition or acquire land held by the petitioner in village Dhirpur of the Kharar Tehsil of the Ambala District for the purpose of rehabilitating persons whose land has been acquired in the Chandigarh area for the purpose of construction of the new capital of the Punjab. The same points are taken in this application as were taken in those applications in which the validity of the Requisitioning Acts of 1947 and 1948 was considered. The present application has now come up for hearing with certain companion applications -- Civil Writs Nos. 96, 106, 115 and 145 of 1951. The contentions now taken by the learned Advocates who appear for the petitioners in these matters are firstly that Ordinance No. IV of 1951 is 'ultra vires' of the powers of the President. This is claimed to be so on two grounds: (1) that as the Requisitioning of Immovable Property Act, 1948, has been declared invalid no amendment of that Act could be, made; and (2) that as Ordinance No. IV of 1951, although published in Delhi on 3-8-1951, was not published in the Punjab Gazette until 7-8-195.1, the promulgation of the Act was on this latter date, and as Parliament was in session on 7-8-1951, therefore the President had no power to promulgate an Ordinance under Article 213 (1) of the Constitution. Secondly, it is claimed that assuming the Ordinance to be valid it is for the Courts to determine whether the requisitioning was or was not for a public purpose, and it is claimed that in the particular cases no public purpose could be served by the requisitioning which is to be made or which has been made.
(3.) For the argument that no amendment can be made of an Act which has been declared invalid reliance has been placed mainly upon observations made by the Supreme Court of America in 'Norton v. Snelby County', 30 J S SC L Ed 178, where it was said (at p. 186): "An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, inoperative as though it had never been passed." Application of this principle was approved by the Patna High Court in 'Kameshwar Singh v. Province of Bihar', AIR (37) 1950 Pat 392 at p. 417, where Sinha J., when dealing with Clause (6) of Article 31 of the Constitution, the clause which provides for certification by the President of any law of the State enacted not more than eighteen months before the commencement of the Constitution, said: "Hence, in order to attract the operation of the clause, the first essential condition is that it must be a valid law of the State. In other words, the certification by the President may cure an irregularity or an illegality in borne details of the law in a valid piece of legislation; but it cannot cure a nullity. If the impugned Act was nullity, the certification by the President could not give life to something which was void 'ab initio', and a law which is void 'ab initio' is something which was never in existence." Willis in his 'Constitutional Law', 1936 Edn., at p, 90 after referring to 'Norton's case', 30 US SC L Ed. 178, points out that the statement made therein needs many qualifications. In Sutherland Statutory Construction, 3rd Edn., by Horack, at page 333 it is said: "Amendments are frequently used to cure an unconstitutional enactment; 'but clearly no Court will enforce the amendment unless the law as amended is constitutional. Constitutional limitations may be complied with, but not avoided by amendment. Some Courts have indicated that an unconstitutional act is legally non-existent and cannot be given effect by an attempt to amend it." And again: "In these states to validate an unconstitutional Act by amendment, the whole Act as amended must be re-enacted." At page 335 it is said: "Probably a majority of the Courts have rejected the theory that an unconstitutional Act has no existence, at least for the purpose of amendment. The unconstitutional Act physically exists in the official statutes of the state and is there available for reference, and as it is only unenforceable, the purported amendment is given effect. If the law as amended is constitutional, it will be enforced. The amendment need not be intelligible and complete on its subject although that is obviously desirable. This escape from the legal fiction that an unconstitutional Act does not exist is sound. That fiction serves only as a top convenient method of stating that an unconstitutional Act gives no rights or imposes no duties. This conclusion should not be used to determine an issue which was not considered in formulating the fiction. The intent of the legislature in amending an unconstitutional Act is just as easily ascertained as it is when it amends a valid Act. Amendment offers a convenient method of curing a defect in an unconstitutional Act." I think that this statement represents the true position. The learned Advocate- General has pointed out that this has received recognition by the action of the legislature in making formal repeal of enactments declared to be invalid. By a decision of the Federal Court 'Emperor v. Benoari Lall', AIR (30) 1943 FC 36, certain provisions of Ordinance No. II of 1942 were declared invalid. This decision of the Federal Court was reversed by the Privy Council 'Emperor v. Benoari Lall', AIR (32) 1945 PC 48, but in the meanwhile formal repeal of Ordinance No. II of 1942 had been made by Ordinance No. XIX (19) of 1943. The enactment considered in our judgment of 17-7-1951 happened to be a Punjab enactment. Had it been a Central enactment it could hardly have been suggested that by a judgment of this Court that enactment had been erased from the statute book, per decision would have been in no way binding upon any Court in any other State. It would not be a judgment of the nature of those judgments set out in Section 41, Evidence Act. The effect of our judgment is not that the impugned Acts never existed or have ceased to exist, but only that so long as the judgment is not overruled the Courts in this State will decline to recognise the two impugned Acts. It seems to me there can be no objection to Ordinance Nos. IV of 1951 on the ground that it validates something which could not be validated. I think therefore the first argument against the constitutionality of the Ordinance is not an argument of substance.;